OSM to probe state reviews of mine permit revisions

The U.S. Office of Surface Mining decided on the probe in response to the controversy over approval of two new Massey Energy coal storage silos near a Raleigh County elementary school.

“We’re going to spot-check it, and see if there are any systematic problems,” said Roger Calhoun, director of OSM’s Charleston field office.

OSM will also examine whether the DEP is properly enforcing the rules for grandfathering in mining operations within 300 feet of schools, churches and homes.

“We’ve got an issue that was highlighted,” Calhoun said. “We should take that into consideration and see if there is a broader problem.”

Calhoun said OSM’s review would start this year and be added to the agency’s list of oversight topics for next year as well.

It is not clear when results would be released.

Under the 1977 federal Surface Mining Control and Reclamation Act, West Virginia and most other mining states regulate their own coal industries.

As part of that law, OSM is required to ensure that states do a good job of enforcing federal mining rules.

In the more than 20 years that OSM has monitored West Virginia mine regulators, the agency has never specifically examined the way permit boundary changes are approved.

Later this week, the state Department of Environmental Protection is expected to announce at least preliminary findings of its investigation of the Massey silo permits.

On July 15, the DEP suspended a permit for Massey to build the second of two 168-foot-tall coal silos just 220 feet from the property line of Marsh Fork Elementary School near Sundial.

The DEP then took the unusual step of hiring a survey crew to help agency officials determine if the silos are within the company’s legal permit boundary.

Under state and federal law, no new mining operations are allowed within 300 feet of a school.

In 2003 and again last month, DEP Secretary Stephanie Timmermeyer approved the Massey silos. Agency officials said that the silos were exempt from the 300-foot limit because they were within the permit boundary of an operation that existed prior to passage of the federal Surface Mining Control and Reclamation Act on Aug. 3, 1977.

But maps that Goals Coal filed with the DEP showed that one silo has been built and the other was under construction on land that appears to have been added gradually to the company’s legal mine boundary over the last eight years.

Massey never specifically asked for the permit changes, and the DEP never approved them. Instead, the changes just showed up on maps that company engineers filed periodically with the DEP.

In the Massey case, the company submitted the maps as part of proposals for permit boundary changes unrelated to the silo location.

Every year, the DEP processes hundreds of permit boundary changes that cover thousands of acres of mining operations.

Last year, for example, the agency processed about 250 “incidental boundary revisions,” or IBRs, that covered nearly 2,500 acres.

Randy Huffman, director of the DEP Division of Mining and Reclamation, said agency permit reviewers have not historically gone back to original permit maps when they review proposed boundary changes. Instead, Huffman said, DEP staffers simply compare the proposed changes to the most recent map submitted by a coal company engineer.

On July 15, Huffman ordered two actions that he said should help avoid such problems in the future:

Every permit revision that includes activity with 300 feet of an existing permit boundary “must be thoroughly investigated to ensure no boundary encroachments will take place,” Huffman said in a memo to permit supervisors. Such investigations, Huffman said, must “include a review of all previous maps of record to ensure no incidental boundary changes have occurred.”

Second, whenever a proposed permit activity falls within 300 feet of a protected area such as a school “a written statement must be made indicating all activity is contained within the existing permit boundaries” from the original permit.

Last week, Timmermeyer said, “The agency’s policy in the past has been to rely on the last map of record, which is required to be certified as true and accurate by a licensed professional engineer.

“This administration will review more closely all maps submitted to the agency for any permit decision,” Timmermeyer said. “DEP has already implemented a new measure to ensure all maps of record are reviewed for facilities proposed within 300 feet of any permit boundary.”

Timmermeyer said she has no evidence to indicate that unapproved changes in permit boundaries are being added to mining maps.

“If anyone brings to our attention any similar discrepancy, we will act swiftly as we have in this instance,” Timmermeyer said.

Huffman said he thinks the DEP needs to look at previously approved permits to determine if there are other similar problems.

“I think it’s something we need to look at and something we will look at,” Huffman said. “It’s a question we need to ask ourselves — is this a common or uncommon thing?”